Amin George Forji
Faculty of Law, Department of Public Law, University of Helsinki
Ethics (morality), Religion and Behavioral Patterns
Ethical (moral) and religious norms are strictly speaking not mandatory courses of action for any legal system. Theoretically, a social order or legal order on the one hand and a moral or religious order on the other hand can exist independently of one another. Meanwhile a high moral standard is customarily expected from every individual, a legal order on the one hand and a moral or religious order on the other hand “may be considered as two circles which cross each other. The overlapping section is law.” Law may legislate morality, in which case, moral norms would take a legal character.26 There is no gainsaying that the sociology of law has to begin “by studying from the causal point of view, the phenomenon of ethics, to continue by studying from the same point of view, the phenomenon of power, and to conclude by an analysis of the complex phenomenon formed by the joint action of both.” But moral or religious orders in many respects tend to function in very much the same way as legal orders. They all function to suppress evil and bring about socially desired behavior through the technique of punishment.28Any norm that does not prescribe behavior simply does not exist. Law, morality and religion all compel good conduct (behavior). To talk like one writer, they each have a character, content and condition of application. It is also inferred that religious like moral ideologies always more or less accurately mirror social reality. Indeed, these three orders all epitomize how social power can dominate over individuals both by means of law as well as outside the law. The similarities notwithstanding, their actual measure of authority and influence varies considerably. The case of murder is a very glaring example. All three orders categorically forbid murder. While under a moral order ( for example: ‘Thous shall not kill’), people would generally refrain from committing murder because a known murderer would certainly be ostracized by fellow men; still there is a great difference with a legal order, whose reaction consists of a précised measure of coercion enacted by the order Its efficacy thus rests on its coercive character. Under a legal order, a judge would be authorized to punish anyone who commits murder with either imprisonment from n years to life imprisonment, or in some jurisdictions, in the case of grievous murder with a death penalty.
A moral reaction to an immoral offence is neither prescribed by a moral order nor socially oriented. Its efficacy rests on voluntary obedience. Religious norms like legal norms on their part threaten the murderer with punishment, however not in the murderer’s lifetime but after death by a super-being. Meanwhile religious norms are apparently more effective than legal norms, despite no physical force involved, that efficacy principally presupposes a “belief in the existence of a superhuman authority.”Unlike a legal order which is determinate in nature thanks to its coercive character, any reliance on a moral or religious order ultimately boils down to a reliance on utopia, because human actions are anecdotal.
Irrespective of whatever form it takes, any adherence to law, whether willingly or involuntarily would naturally presuppose a sense of motivation and “coercion”. While in the case of legal rules, such deterrence involves the fear of the application of force or coercive measure against the individual’s will; in the case moral or ethical obedience, deterrence or loss of freedom takes the form of coercion in the psychological sense.I would return to this comparison much later in the essay, but more with respect to the determination of appropriate sanctions for socially injurious behaviors. Suffice it to say at this point that law normally regulates its own creation, and by imposing a certain conduct seeks to induce the opposite behavior.
Theorizing crime and behavior
Several theories and schools of thought have been expounded to relate crime and behavior (or crime and delinquency) since the 18thcentury following the birth of criminology as a science. Some of these include the classical, the neo-classical, the positivists, the sociological, Urbanization, differential opportunity, anomy, functionalist, cultural conflict, psychological, radical or critical, Austrian and cartographic schools of criminology. There has been as much colossal variation in orientation amongst these schools as there have been writers on the subject.
The conspicuous disparity amongst criminologists in one respect is a clear reminder that there could be hundreds of explanations out that as to why crime is committed or why a person may chose to behave in an anti-social manner. Even if these schools severally look at the incidence of crime from purely different perspectives, in one sense, I perceive it as demonstrative of their common enthusiastic quest on the relationship between law, crime, criminals and punishment. There is a common understanding amongst them to the effect that behind every offense there is a cause. Even if there is little disagreement on this principle, the reverse is true on what constitutes that “cause”. Why do people commit crimes? What accounts for delinquent behavior? What is the main motivation? Is there any connecting link between criminals? In the following section, I would attempt an answer to the above questions by evaluating the two most prominent though conflicting schools of thought on criminal behavior and law namely, the classical versus positivist schools of criminology.
Of Criminal Behavior and Law-making
Kelsen’s conception of reward and punishment which I have already highlighted is a clear pointer to the ultimate intent of any legal system, that is, to stimulate good behavior in the society. The social behavior of individuals, Kelsen observed, is always accompanied by a judgment of value, namely, the idea that conduct in accordance with the order is ‘good’ whereas the contrary to the order is ‘bad’. Put plainly, the law gives incentives to desirable behaviors and punishment to socially injurious conducts. Every social conduct inevitably produces a certain comparable legal effect. Members of the society are expected to be fully conscious of this fact. It is indeed that consciousness that guides their decisions in doing or not doing a thing. Cesare Beccaria (1738 – 1794) reportedly wrote that “In order for punishment not to be, in every instance, an act of violence of one or of many against a private citizen, it must be essentially public, prompt, necessary, the least possible in the given circumstances, proportionate to the crimes, dictated by the laws.”
The search for answers to criminal behavior is neither new nor easy. And this is certainly not for lack of trying. What is it that prompts some individuals into crimes while others do not? In order to answer the above question, it would be imperative to thoroughly evaluate the approaches of the two leading schools of thought on criminology and criminal behavior, to wit: the Classical versus the Positivist Schools of Criminology. The two schools are like two parallel streams that flow together but never meet, in that they are both as concerned on the correlation between society, law and human behavior though with very contrasting perceptions. While the classical school has essentially focused on law-making, the positivist school on its part has concentrated itself with the study of criminals. While the former’s findings have been naturalistic, those of the latter have been largely spiritualistic. As a result, the classical school has traced criminality to bad laws. The positivists have contradicted by linking it to bad people .